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relationship with the member states. Both the Izmir and Interlaken conferences emphasised the ‘fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level’.21 This led state representatives at Brighton to conclude that ‘for reasons of transparency and accessibility’ the principle of subsidiarity and the margin of appreciation be included in the Preamble to the Convention.22 The Declaration further encourages ‘open dialogues between the Court and the States Parties as a means of developing an enhanced understanding of their respective roles in carrying out their shared responsibility for applying the Convention’.23 Yet, whether the codification of subsidiarity will indeed lead to less friction and an increased dialogue between the Court and the member states remains to be seen. States presently eye the ECtHR with mixed feelings. On the one hand, comparative studies of Europe's higher court judges and Members of Parliament suggest that the ECtHR actually enjoys a legitimacy credit rather than a legitimacy deficit.24 On the other hand, scholars, as well as politicians, question the authority of the Court and criticise the widening grip of Strasbourg.25 They have questioned the legitimacy of the Court and several particular judgments. Some, such as the Lautsi case concerning whether crucifixes may hang in public classrooms in Italy, tackle sensitive and highly political issues.26 Such judgments are taken to go to the very core of national decision-making. Some judgments have thus provoked strong reactions among the states parties to the ECHR. Ten states intervened as ‘third parties’ in the Lautsi proceedings before the Court's Grand Chamber. Similarly, the proper relationship between the Court and German courts was discussed in Germany in the aftermath of the Federal Constitutional Court's Görgülü decision (2004) concerning custody and contact with children born out of wedlock.27 In Norway, the Court has been

21ECoHR Council of Europe, High Level Conference on the Future of the European Court of Human Rights, Interlaken, 2010, para. 6.

24B. Çali, ‘The Legitimacy of the European Court of Human Rights: The View from the Ground’ (Department of Political Science, University College London, 2011) (hereinafter Çali, ‘The Legitimacy of the ECtHR’) 35.

25Canivet, Cours suprêmes.

26ECtHR, Lautsi and Others v. Italy (Appl. No. 30814/06), Judgment (Grand Chamber), 18 March 2011, not reported. Compare B. Schlütter, ‘Crucifixes in Italian Classrooms: Lautsi v Italy’, European Human Rights Law Review 6 (2011) 86–92 for a discussion.

27Bundesverfassungsgericht, Preventive Detention, No. 2 BvR 2365/09, Judgment, 4 May 2011.

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criticised for its approach to evolutive treaty interpretation, of being too concerned with details, and for extending its scope of jurisdiction with regard to substantive law as well as to subjects.28 In the United Kingdom (UK) a repeal of the Human Rights Act, which implements the ECHR, has been openly debated since May 2010,29 though the results of the Brighton Conference may have soothed some of the harshest critics.30

1.2The Court and the Council of Europe institutions

The current reform process to overcome the overload of cases culminated in the amendment and introduction of new admissibility procedures as contained in the Brighton Declaration, as well as in the earlier Protocol 14 to the ECHR. So far, this process has mostly dealt with internal reform of the Court and its procedures. The Brighton process also addressed the Court's relationship to other Council of Europe institutions: toward the Committee of Ministers, and its relationship toward the Parliamentary Assembly. In particular, the Brighton meeting discussed the election of judges to the Court.31 In the longer term, the Court needs to reflect on the implementation of its judgments and the role of the Committee of Ministers in the supervision of this task, as well as its possible budgetary independence from the other Council of Europe institutions.

1.3 The Court and the EU

The relationship of the Court with the EU also needs reconsideration. During the past four years, the Court has had to clarify its relationship with the CJEU. A main reason is the 2009 Lisbon Treaty, which stated the

28Compare: Norges Offentlige Utredninger, Makt og demokrati, Sluttrapport fra Maktog demokratiutredningen (Oslo: Statens forvaltningstjeneste Informasjonsforvaltning, 2003) 32.

29I. Dunt, ‘Clarke: “No Question” of Human Rights Withdrawal’, available at www. politics.co.uk/news/legal-and-constitutional/clarke-no-question-of-human-rights-withdrawal- $21387359.htm; N. Barber, ‘The Commission on the Human Rights Act and the European Court of Human Rights’, 10 September 2011, at http://ukconstitutionallaw.org/2011/ 09/10/nick-barber-the-commission-on-the-human-rights-act-and-the-european-court-of- human-rights/; G. Bindman, ‘Britain Should be Proud of the Human Rights Act – And Protect It’, The Guardian, 29 August 2011, at www.guardian.co.uk/commentisfree/2011/ aug/29/human-rights-act-protect.

30Compare J. Rozenberg, ‘Draft Brighton Declaration is a Breath of Fresh Air’, The Guardian, 9 April 2012.

31Compare Brighton Declaration, paras. 21 and 22.

EU's obligation to ratify the ECHR.32 The current draft accession agreement brought the formal preparations for the EU's accession a considerable step further.33 Once ratification takes place by the 47 member states, new questions require attention. According to the draft Agreement, the EU may act as both a respondent and a co-respondent to the ECtHR proceedings. Procedurally, this means that complaints can be aimed directly against the Union, and that it can join the proceedings as a party in cases which involve the compatibility of EU legislation with the ECHR.34 From a substantive point of view, the Bosphorus jurisprudence of the ECtHR may need to be modified. This jurisprudence established the rebuttable presumption that the standard of human rights protection at EU level is equivalent to that provided by the ECHR. Accordingly, the ECtHR will only exceptionally assess the compatibility of EU legislation implemented by member states with the ECHR.35 The Court may also need to discuss whether the acts complained against can be attributed to the EU, a particular member state, or both. The CJEU, or the ECtHR, or both, must tackle the relationship between the ECHR and the Charter of Fundamental Rights which has become an essential part of the Treaty on European Union (TEU)36 and stands on the same footing as primary EU law.

1.4 The Court and other international organisations, in particular, the UN

The Court must also address its relationship with the Security Council and international territorial administrations established by the UN. The Court is a regional body. Even if a case before it concerns states which are part of the wider Europe, the Court cannot directly control the UN. Nonetheless, issues of attribution may arise for UN-authorised peace

35ECtHR, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland (Appl. No. 45036/98), Judgment (Grand Chamber), 30 June 2005, Reports 2005-VI. The Bosphorus doctrine was later refined, for example, in ECtHR, Biret v. 15 EU Member States (Appl. No. 73250/01), Decision (Fifth Section), 9 September 2008, Reports 2008; ECtHR, Connolly v. 15 EU Member States (Appl. No. 73274/01), Decision (Fifth Section), 9 December 2008, not reported; ECtHR, Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. The Netherlands (Appl. No. 13645/05), Decision (Third Section), 29 January 2009, Reports 2009.

36Article 6(1) of the TEU.

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operations. Consider if human rights violations occur that involve member states who have ratified the ECHR. The Court's jurisprudence, such as the Behrami and Saramati cases, addressed the complex issues of authorship and attribution, as well as further questions involving the supremacy of member states' obligations under the UN Charter. The cases have often been criticised for deviating from the general law of international responsibility. On the other hand, recent cases like Al-Skeini and Al-Jedda illustrate that member states may not always hide behind international organisations who authorise an operation. Further questions may arise, if UN-mandated action with impact on individual rights is first implemented by a regional organisation like the EU and then executed by the individual member states, a situation which was before the Court in the Kadi and Bosphorus proceedings. Finally, future cases may not be confined to questions concerning the authorisation of acts by the UN, but may concern regional security organisations like the North Atlantic Treaty Organisation (NATO).

2. Principles and concepts guiding the analyses in this book

The need to rethink the Court's role toward member states and international organisations is imminent. Several maxims and principles may guide such reflections on the future role of the Court.37 Among the most frequently named are principles of the rule of law,38 the principle of subsidiarity, the principle of effectiveness,39 as well as the principles of implied powers and proportionality.40 These are not novel notions: they stem from discussions

37For the character of the principle of proportionality as a maxim, rather than a principle of legal rule, compare F. Wieacker, ‘Geschichtliche Wurzeln des Prinzips der verhältnismäßigen Anwendung’, M. Lutter, W. Simpel and H. Wiedemann (eds.), Festschrift für Robert Fischer (Berlin, New York: Walter de Gruyter, 1997) 867–81 (hereinafter Wieacker, ‘Geschichtliche’), at 867.

38Ibid.; J.A. Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’, Columbia Journal of European Law 11:1 (2004–5) 113–50, at 113.

39M.D.S. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford University Press, 2004). For the effectiveness criterion, in particular, compare Y. Shany, ‘Assessing the Effectiveness of International Courts: Can the Unquantifiable Be Quantified?’, SSRN eLibrary (2010).

40Compare J.E. Alvarez, International Organizations as Law-Makers (Oxford University Press, 2005) at 123, referring to intent instead of consensus. See also, K.A. Young, The Law and Process of the U.N. Human Rights Committee (The Procedural Aspects of International Law Monograph Series) (Ardsley, New York: Transnational Publishers, 2002) at 67–9.

within the Council of Europe, or from the Court itself, and have been used frequently in the course of its reform process. These are also either firmly established or arguably increasingly recognised in general international law.41 Subsidiarity and the criterion of effectiveness were essential in the reform discussions at the Izmir, Interlaken and Brighton conferences.42 These principles are used by the ECtHR on a regular basis. The principle of proportionality is also exercised by the Court, and has found entry into many national and international review procedures.

Many of the stated principles have gained prominence in discussions on more general overarching theoretical concepts, such as the legitimacy of international institutions and notions of constitutionalism.43 The Court's present and future performance is often discussed in light of these two paradigms. The constitutionalist notion is often seen as a counterweight to the idea of individual justice.44 Yet some of the criteria that arguably form part of legitimacy and constitutionalism, such as effectiveness, proportionality and subsidiarity, can, do and should also favour delivering individual justice. Their ultimate impact is not predetermined by either of the two approaches. In short, the set of principles leaves room for further theoretical deliberations.45

41On the importance of practice for rules binding on international institutions, see UN, Office of Legal Affairs, ‘Comments and Observations of the Office of Legal Affairs on the Draft Articles on Responsibility of International Organizations, Adopted by the International Law Commission on First Reading in 2009’ (2011) 2, 5. On the relevance of practice for the attributability of a certain conduct of an international organisation under international law, see art. 8 of the DARIO.

42Compare Brighton Declaration, paras. 12 and 32.

43A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press, 2000); R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004). For the constitutionalist approach to international law, compare J. Klabbers, G. Ulfstein and A. Peters, The Constitutionalization of International Law (Oxford Scholarship Online, Oxford University Press, 2009); A. Peters, ‘Rechtsordnungen und Konstitutionalisierung: Zur Neubestimmung der Verhältnisse’, Zeitschrift für Öffentliches Recht 65 (2010) 3–63; A. Stone Sweet and J. Mathews, ‘Proportionality, Judicial Review, and Global Constitutionalism’, in G. Bongiovanni, G. Sartor and C. Valentini (eds.), Reasonableness and Law (Law and Philosophy Library) (Dordrecht, Heidelberg: Springer Netherlands, 2009) 171–214.

44S. Hennette-Vauchez, ‘Constitutional v. International? When Unified Reformatory Rational Mismatch the Plural Paths of Legitimacy of ECHR Law’, in Christoffersen and Madsen, The ECtHR between Law and Politics, 144–63; Christoffersen, ‘Individual and Constitutional Justice’, 181–203, at 183.

45R.A. Schapiro, Polyphonic Federalism: Toward the Protection of Fundamental Rights

(University of Chicago Press, 2009) for an innovative approach to the subsidiarity principle.

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The editors' argumentative framework adheres to these principles and concepts to identify areas of potential improvement of the European human rights system in dire need of further reform. It seems possible and sensible to analyse the ECtHR's relationship to member states and its inter-institutional performance according to these principles, and to base recommendations for qualitative improvements on some of those yardsticks. For the purposes of this book, the editors allow differing approaches by the contributing authors with regard to these principles. The individual contributions develop their own theoretical frameworks as necessary, and decide whether, and which, principles should be included in their analysis. Indeed, the best interplay of those principles might only be answered on a case-by-case basis, considering all relevant circumstances. The following section illustrates the relevance of some of these principles.

2.1The legitimacy of the ECtHR

The current institutional crisis of the ECtHR is increasingly interpreted and addressed as a threat to the Court's legitimacy.46 This may partly be fuelled by, and fuel, broader concerns about the legitimacy of international institutions which have gained prominence in law, political science and political philosophy. Thus, some authors invoking concerns about legitimacy are concerned with the growing authority of international institutions and claim that it should be accompanied by an increase in accountability.47

With regard to the ECtHR, legitimacy concerns revolve around the difficulties in its present and future functioning, its distance from the European polity, as well as fears that it encroaches upon the sovereignty of its member states.48 As an institution, the Court has undergone

46Christoffersen and Madsen, The ECtHR between Law and Politics, (who address problems related to the legitimacy of the ECtHR in part 2 on the legitimation of the Court); K. Dzehtsiarou and A. Greene, ‘Legitimacy and the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners’, German Law Journal 12:10 (2011) 1707–15 (hereinafter Dzehtsiarou and Greene, ‘Legitimacy and the Future of the ECtHR’); Cali, ‘The Legitimacy of the ECtHR’; A. Føllesdal, ‘The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights’, Journal of Social Philosophy 40:4 (2009) 595–607.

47C. Janik, ‘Die EMRK und internationale Organisationen – Ausdehnung und Restriktion der equivalent protection Formel in der neuen Rechtsprechung des EGMR’, Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 70 (2010) 127–79, at 130.

48Dzehtsiarou and Greene, ‘Legitimacy and the Future of the ECtHR’, at 1707.

significant changes since its establishment in the 1970s. The Strasbourg system has developed from a Commission and Court division into a full quasi-constitutional review structure, with the Grand Chamber exercising the right to appeal first instance decisions of either the complainant or the state. The move to a two-chamber structure by Protocol 11 to the ECHR has sometimes been mentioned as one major cause of the increased number of complaints to the Court. Prior to the new chamber structure, relatively few individual complainants reached the Court; now, it is overrun with cases and has accumulated a huge backlog.49 It is often held to have become a victim of its success.

The Court adjudicates cases of Europe-wide significance on a frequent basis. It has developed certain standards, such as the margin of appreciation doctrine, which some perceive as unique to the ECHR system. This doctrine serves to avoid undue interference in national democracy and traditions. But the Court is often conceived of as an island disconnected from the polity or the general public in the member states. For example, many regard the nominating and appointment process for the judges of the Court as opaque, even though the Parliamentary Assembly has sought to improve the procedure over the last seven years.50 Moreover, the ECtHR's interpretative techniques, as well as controversial cases like A, B and C v. Ireland or Lautsi v. Italy have caused scepticism among the member states. States without a national constitutional court, but with a long and strong national tradition of parliamentary autonomy, like the Nordic countries and the UK, feel that the Court's decisions in difficult cases encroach upon their parliamentary sovereignty and autonomy.51 Such concerns are only partly alleviated by the Court's margin of appreciation doctrine.

49Supra note 6.

50Compare CoE Parliamentary Assembly, Resolutions 1200 (1999), 1646 (2009).

51E. Hale, ‘Beanstalk or Living Instrument?’, in ECtHR, Dialogue between Judges (Strasbourg: Council of Europe, 2011) 11–18, at 18; J.E. Helgesen, ‘What are the Limits to the Evolutive Interpretation of the Convention?’, in ibid., 19–28, at 22, 23; R. English, ‘Human Rights – Strasbourg or Luxembourg?’, UK Human Rights Blog, 9 September 2011; P. Association, ‘Cameron Warned over Human Rights’, The Independent, 22 August 2011; G. Bindman, ‘Britain should be Proud of the Human Rights Act – and Protect it’, The Guardian, 29 August 2011; ‘Deputy PM Nick Clegg Defends UK Human Rights Laws’, BBC News UK Politics, 26 August 2011; ‘UK “should cut links to European Court of Human Rights”’, BBC News UK, 7 February 2011; A. Wagner, ‘Bill of Rights Commission publishes Advice (and Squabbles) on European Court of Human Rights Reform’, UK Human Rights Blog, 9 September 2011.

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The concept of legitimacy can be understood and defined in various ways. Many see democratic legitimacy as the core. But a special challenge is the balance between democratic control and ensuring the independence of the Court. Furthermore, democratic institutions are primarily anchored at the national level.52 Franck's much-invoked framework of legitimacy concentrates on process legitimacy, i.e. the way decisions are made. It emphasises the accountability of international institutions, the coherence and consistency of the decisions made by them, and the adherence of the institution itself to some underlying normative framework.53 Other frameworks assess legitimacy from a social perspective, focusing on the compliance and lack thereof by various actors participating in and affected by the exercise of authority by international institutions.54 Lastly, claims concerned with substantive legitimacy revolve around the substantive output of international institutions and make recommendations on how this output should best be generated.55 Thus, the content of the concept of legitimacy varies, not least across disciplines: political science scholars sometimes use concepts which deviate from those invoked by international lawyers or political philosophers. For example, legitimacy concepts advanced by political scientists often include criteria like the observance of international human rights standards or legality.56 However, many international lawyers emphasise that in international law an action may be legal, but illegitimate.57 We perceive legitimacy as a standard related to, but usually exceeding, legality. It is comprised of criteria which international law is still not fully conversant with, including such notions as fairness and effectiveness.

55For the distinction between output and input legitimacy, see F. Scharpf, ‘Problem-Solving Effectiveness and Democratic Accountability in the EU’, MPIfG Working Paper 3:1(2003).

56Compare Cali, ‘The Legitimacy of the ECtHR’.

57Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford University Press, 2000), at 186.

The ultimate aim of the book is to assess and indicate prospects for the ECtHR's functioning within the inter-institutional framework of the Council of Europe, the EU, the UN and other international organisations, as well as with the member states. Factors that focus on the processes of interaction and decision-making may contribute to the further improvement and strengthening of the Court's role. Factors like effectiveness and subsidiarity, and criteria such as adherence, coherence and the concurrence with a wider European consensus, may be among the elements of a standard of legitimacy applicable at the ECHR level. The subsequent section will explain those principles, which we regard as crucial for an assessment of the ECtHR's institutional interaction and legitimacy.

2.2 Principles governing judicial cooperation and interaction: comity and subsidiarity

Some principles are concerned with the modus operandi of (international) judicial institutions and their relation to member states, national courts of the member states and other courts at the international level. At the level of jurisdiction, the principle of res judicata includes the acknowledgement of decisions made by another court on the same matter at the factual level, and the exhaustion of local remedies. More generally, such principles affect the judicial interaction and dialogue between the Court and the national courts of the member states and other European and international courts.

One of the more general commands applying to the general forms of international judicial dialogue and cooperation is comity. Based on the implied powers doctrine,58 it calls upon courts ‘to defer, when appropriate, to other courts and to treat their procedures and decisions with courtesy and respect’.59 This may sometimes follow from the broader notion of subsidiarity in the form of deference to the decision-making body closest to the case at hand. Thus, each court or tribunal must exercise the competences assigned to it with due regard to the competences of others. Nonetheless, comity is a rather vague concept; it can mean anything from rules of jurisdiction to the discretion to decline a

58Y. Shany, Regulating Jurisdictional Relations betwen National and International Courts

(International Courts and Tribunals) (Oxford University Press, 2007), at 172.

59Ibid., at 166.

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case, or mere courtesy.60 It applies at the level of competences of an international institution, as well as at the level of substantive law. Different notions of comity stem from common or civil law, and they have varying underlying perceptions of the international judicial system as a coherent, hierarchical or fragmented legal order.61 A number of measures emphasised in the Interlaken, Izmir and Brighton processes fall within the wider range of this principle, such as the fourth instance doctrine, the secondment of national judges to the ECtHR, or the cooperation with other relevant national bodies and the national level's taking into account the Court's case law.

The principle of subsidiarity has dominated reform considerations on the future of the ECtHR all around. Its most general form builds upon respect for smaller entities by larger ones. Its legal adaptation concentrates on the exercise of deference or deferral in the form of preference to the exercise of authority by the entity closer to the individuals affected, as opposed to the larger or hierarchically higher authority.62 It applies at the substantive rights level and/or at the procedural level, regulating the general relationship of the ECtHR with the member states.63 Various rules at the procedural level express the legal conception of subsidiarity, amongst others the local remedies rule, the fourth instance doctrine and the implementation of remedies at the national level. The ECtHR has underlined the subsidiary character of its own jurisprudence, i.e. the fourth instance doctrine. Thus, in the Belgian Linguistic case, it held that ‘the Court … cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of the collective enforcement established by the Convention. The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the

60 W.T. Worster, ‘Competition and Comity in the Fragmentation of International Law’, Brooklyn Journal of International Law 34, 2008 (2009), at 121; J.R. Paul, ‘Comity in International Law’, Harvard International Law Journal 32:1 (1991) 1–80, at 4.

61Worster, ‘Competition and Comity’, at 122, 123, 148 and 149.

62Compare A. Føllesdal, ‘Subsidiarity’, Journal of Political Philosophy 6 (1998) 190–218, at 190; J. Isensee, ‘Subsidiarität, das Prinzip und seine Prämissen’, P. Blickle, T.O. Hüglin and D. Wyduckel (eds.), Subsidiarität als rechtliches und politisches Ordnungsprinzip in Kirche, Staat und Gesellschaft, Rechtstheorie, Beiheft 20 (Berlin: Duncker and Humboldt, 2001) 129–77, at 145 et seq.

63Føllesdal, ‘Subsidiarity’.